DOJ Wants Fast & Full DOMA Court Review


The Obama administration has asked the Ninth Circuit Court of Appeals to bypass a three panel review and send a Defense of Marriage Act appeal straight to the full 11 judge panel, hoping for a quicker, and potentially precedent-setting, outcome.

Reports the San Francisco Chronicle:

But Obama’s Justice Department asked the full appeals court Monday to bypass the customary three judges and convene an 11-judge panel.

That procedure would not only expedite the case – the larger panel is the last step before Supreme Court review – but also enable the court to set a stricter standard for laws that deny equal treatment. The panel could overturn the circuit’s 1990 ruling allowing such laws to be upheld if they have any rational justification.

The case involves Karen Golinksi, a federal court worker who is suing to be able to enroll her wife in a federal family insurance plan.

The Obama administration, per its February 2011 determination against Section 3 of the Defense of Marriage Act, is backing Golinski’s case. Lawyers representing the House Republican leadership are defending DOMA in the administration’s place.

U.S. District Judge Jeffrey White declared the law unconstitutional on February 22 of this year and ordered Golinski’s wife be enrolled in the program. House lawyers have not in fact moved to stay that ruling but have appealed.

The DOJ’s request centers on a previous number of cases involving gay rights and what standard of judicial review is given to discrimination cases that involve sexual orientation. Currently, only the lowest of the three standards is used, however the DOJ believes that if the full Ninth Circuit conducted a fresh review — not tied to a previous ruling —  they would find that the medium standard of review would be applicable.

The DOJ asks therefore that the Court grant an 11 panel full Ninth Circuit review to examine this point, saying:

“Whereas a panel of this Court would need to examine whether High Tech Gays continues to bind panels of this Court, the en banc Court could avoid that inquiry and could instead directly consider afresh whether, as the government argues, heightened scrutiny applies to classifications based on sexual orientation.”

The DOJ also argues:

“And because the resolution of that threshold question will have substantial implications for the resolution of this case, en banc consideration is warranted to provide an expeditious and definitive resolution to plaintiff’s challenge to Section 3 of DOMA.”

The Obama administration has also asked for an expedited three panel hearing should the request for an immediate en banc hearing be denied, and that a hearing be scheduled no later than September of this year.

By any standard this is a robust move by the DOJ that seems geared toward getting the Golinski case before the Supreme Court of the United States in as quick a time as possible, and potentially with a higher standard of judicial review having been set. This alone would constitute a strong position for LGBT rights advocates.

BLAG, the House Leadership’s lawyers, is said to be filing a court reply in due course.

For a full breakdown on the legal cases involved in this DOJ request, please click here.

In terms of LGBT rights a three-member panel of the Ninth Circuit most recently ruled Proposition 8 to be unconstitutional, but how they will deal with the Golinski case will be of keen interest to both supporters and opponents of marriage equality alike given the significant legal questions that are attached.


Related Reading:

DOJ Will Not Defend Anti-Gay Block on Military Benefits

SPLC Challenges DOMA On Behalf of Disabled Lesbian Vet

Domestic Partners Join DOMA Health Care Lawsuit


Image used under the Creative Commons Attribution License with thanks to alex-s.


Luvenia V.
Luvenia V5 years ago

Equal rights for EVERY American,how is that wrong??? I hope that when the times comes and it will come that the SC will do the right thing and we will see marriage equality in my life time. You don't have to be Gay to want equality.

Larry Cormier
Larry Cormier5 years ago

I was contemplating greatly on wether to vote for Obama simply because he not only didnt do what he campaigned on ( especially resigning the Patriot Act and signing the NDAA) but he reversed his direction on them. Now we see a great rise in gas prices that he is being blamed for. Actually, it is his fault. I wonder why no one has put 2 2 together and seen that the gas price increase happened with 3-4 days of his announced changes to the corporate tax structure. He said he wants to bring the tax rate down to 28% from 35%. This was applauded by the Corporations. He then said there would be a coresponding elimination of the tax loopholes that are the cause of the corporations showing billions in profit not paying any tax at all. This is big oil showing they hold this country hostage.

Kandy B.
Kandice B5 years ago

I am loving how everyday I read something new that Obama and his adminstration is backing. I know that many people will say that it's because he wants the votes and he knows that the biggest issue right now is DOMA and LGBT rights mainly Equality; so that's WHY he is doing it. Personally, I don't give a damn WHY or WHAT his reason is for doing it- I'm just overjoyed at the fact that FINALLY someone in a position of power is using it to actually do some good in this world! People are pissed that Obama hasn't been able to make good on any of his "promises" so to speak. But it's not like he hasn't tried. That man has done more for this country than any proceeding him. Whatever issues Obama may have changed his mind on during the past few years pales in comparison to tho those Willard-the-Mitt HAS changed his on -- and continues to. At any rate, Obama HAS eliminated that obscenity known as "Don't Ask, Don't Tell," decided months ago not to defend DOMA (which the Theo-Fascists in the House of Representatives are now spending $1.5 million to support) and inch by inch, day by day he is making it a tad bit easier for the LGBT community to receive political asylum in the U.S.A. ALL of which- positions every candidate from the GOP - "Tea" Party Cartel would immediately overthrow if given the slightest chance in office! Obama has been, and IS the change this country needs- one more term in office and I guarantee we would see that!

Jennifer S.
Jennifer S5 years ago

Repeal DOMA!!!!!

Mari Garcia
Mari Garcia5 years ago

i wish they would just have marriage equality already and get rid of all this complicated crap us gays have to deal with

John B.
John B5 years ago

Great move by the DOJ, in my humble opinion. Thanks for the article.

J.L. A.
j A5 years ago

Sounds like a righteous move by DOJ.